In May 2007, the employer posted a Notice of Filing (NOF) of a PERM application for ten consecutive days. The Certifying Officer (CO) denied the PERM application citing a DOL regulation which requires Notices of Filing to be posted for ten consecutive "business" days. The restaurant explained to the CO that it was open for business every Saturday and Sunday, that these days were the busiest times of the week and that all employees are required to work on weekends.

However, the CO was not persuaded. He denied the PERM application on the ground that "for the purposes of the Permanent Labor Certification program, business days as related to the posting of the NOF are defined as Monday through Friday, excluding weekends and Federal holidays."

The CO forwarded the case to BALCA, arguing that defining business days as actual days that the employer is open would make the administration of the NOF provision unfeasible.

BALCA started, wisely enough, by examining the DOL regulation, 20 C.F.R. 656.10(d)(1)(ii), which imposes the requirement that the NOF be posted for ten consecutive business days. Does the regulation define the term "business days"? No.

Next, BALCA examined the purpose of the regulation. Here, they looked to the Federal Register notice which announced the publication of the regulation, and concluded that "the purpose of the Notice of Filing requirement is to ensure that the employer's employees and other interested persons are notified that it is filing an application for a permanent alien labor certification."

BALCA went on to consider whether the purpose of the regulation would be accomplished by considering Saturdays and Sundays to be business days: "If the Notice of Filing is posted for ten consecutive days when employees are on the worksite and are able to see the Notice of Filing, the purpose of the Notice of Filing requirement is fulfilled. As long as an employer has employees working on the premises on a Saturday, Sunday or holiday, those days are business days for the purposes of complying with the Notice of Filing posting."

Based on this reasoning, BALCA vacated the CO's denial of the PERM application on the ground that "fundamental fairness" requires that the employer be given the opportunity to demonstrate that Saturdays and Sunday are business days for the restaurant.

All of which brings us to the DHS, specifically the USCIS.

Not all occupations are subject to the general requirement that employers must submit a PERM application. Specifically, according to a DOL regulation, when an employee is a member of a shortage (aka "Schedule A") occupation, no PERM application is required. There are only two Schedule A occupations, Registered Nurses and Physical Therapists. When sponsoring an RN or a PT for permanent residence, an employer skips the DOL and submits a visa petition to the USCIS. The employer is subject to the same requirement that a Notice of Filing be posted for ten consecutive business days.

Here is the rub: The USCIS, like the CO in "In the Matter of Il Cortile Restaurant" has always maintained that weekend days were not business days for purposes of ten consecutive business day regulation. Now that the BALCA has ruled that if the employer is open for business on weekends, Saturdays and Sundays are business days, the USCIS should conform its interpretation of the DOL regulation with BALCA's.

For years, the USCIS has denied visa petitions submitted by hospitals (which are open seven days a week, 52 weeks a year) on behalf of Registered Nurses and Physical Therapists on the ground that weekend days do not count as business days.

This policy has had serious negative immigration implications particularly for RNs since, for the most part, RNs have no underlying nonimmigrant status. When USCIS denied their I-140s, the agency also denied their I-485s leaving all of them unlawfully in the U.S. or placing them in removal proceedings. Further, the USCIS maintains that the RNs affected may not reapply for adjustment of status under section 245(k). This is because the agency interprets the word "status" in section 245(k) to mean "nonimmigrant status", and most RNs lack any underlying nonimmigrant status.

Therefore, it is a matter of "fundamental fairness" that the USCIS not only change its policy toward what constitutes a "business day" for NOF purposes, but that the agency, on its own motion, reopen all improperly denied I-140 visa petitions and I-485 applications for adjustment of status for RNs, PTs and their family members who were prejudiced by the USCIS' improper application of the law.

October 13, 2010

Being involved in a pending nationwide class action lawsuit regarding the Child Status Protection Act (CSPA) tends to focus one's attention on the operation of this statute. I try to read every CSPA decision rendered by a Federal Court or by the Board of Immigration Appeals (BIA). (Our final brief in the class action lawsuit was submitted to the 9th Circuit Court of Appeals on October 5th. We eagerly await the scheduling of oral arguments by the Court.)

The day after we submitted our brief, the BIA, in Matter of Murillo (A099 252 007) interpreted the phrase "sought to acquire" in section 3 of CSPA in an expansive matter, rejecting the argument of the DHS which would have resulted in Mr. Murillo being removed from the United States and separated from his parents for many years.

Here is the story.

Jose Jesus Murillo was born in Mexico on May 2, 1984. His father became a lawful permanent resident of the U.S. and petitioned his wife on October 16, 1995 under the family-based 2A category. Jose, being only 11 years of age was included as a "derivative beneficiary". The INS approved the petition on August 9, 1996.

A visa number became available to Jose and his mother on June 1, 2003 when Jose was 19 years old. However, the family's attorney did not file an application for adjustment of status under section 245(i) for more than one year.

The twist in the story is that CSPA does not require that Jose's application for permanent residence be "submitted" or "filed" before his priority date becomes current. Rather, CSPA requires that he must have "sought to acquire" permanent residence within one year of his priority date becoming current. This means, in Jose's case, that he must have taken action to become a permanent resident before June 1, 2004.

The record is clear that he hired an attorney to file an application for adjustment of status for him in April 2004. On April 30, 2004, Jose obtained a money order for filing fees payable to the INS. However, his attorney did not actually file the I-485 until November 26, 2004. This application was returned by the USCIS due to an error in the filing fee. The I-485 was resubmitted on December 18, 2004 and once again on February 1, 2005.

The I-485 was denied on the ground that Jose had not "sought to acquire" a green card within a year after his priority date became current, and he was placed under removal proceedings before an Immigration Judge. The Judge granted Jose's application for adjustment of status on the ground that he had met the "sought to acquire" requirement of CSPA by hiring an attorney to prepare and submit an I-485 on his behalf within one year of his priority date becoming current.

The DHS appealed the Judge's decision to the BIA. They argued that a person can only be found to have "sought to acquire" permanent residence if they "filed" their application for permanent residence within the one-year period.

Jose's attorney, and Mary Kenney, who authored a friend of the court brief on behalf of the American Immigration Council (AIC), argued that if Congress intended that a person must "file" an I-485 within one year of their priority date being current, they would have used the word "file" or "submit" or "apply" in writing CSPA. They cited numerous other laws where Congress did use these words.

The BIA held that they were not bound by the DHS' interpretation of a statute. Further, they held that if Congress meant "sought to acquire" to mean "filed", Congress would have used the word "filed" or a similar word, but Congress chose not to do so. The Board examined the Congressional intent in passing CSPA and found that it was passed to "bring families together".

Finally, the Board quoted a U.S. Court of Appeals decision in Padash v. INS, 358 F.3d 1161, 1172 (9th Cir. 2004) which held that CSPA should be "construed so as to provide expansive relief to children of United States citizens and permanent residents."

The Board held in favor of Jose Murillo. However, this decision is not a precedent, meaning that it only applies to Mr. Murillo, not to anyone else. Matter of Murillo is similar to a 2004 Board decision interpreting the words "sought to acquire", Matter of Kim.

The USCIS has now had over eight years to promulgate regulations to implement CSPA, but has failed to do so. We urge the Board to designate Matter of Murillo as a precedent in order to clear up any remaining uncertainty about the meaning of the words "sought to acquire" in CSPA.

About The Author

Carl Shusterman is the managing attorney of Law Offices of Carl Shusterman based in Los Angeles, CA. He has specialized in immigration law for over 30 years and his six-attorney law firm represents clients in all 50 states. Mr. Shusterman is a 1973 graduate of the UCLA School of Law. He served as an attorney for the U.S. Immigration and Naturalization Service (INS) until 1982 when he entered private practice. He is authorized to practice before the Supreme Court of California, the Federal District Court in the Central District of California, the U.S. Court of Appeals in a number of different circuits and the Supreme Court of the United States. Mr. Shusterman is a former chairman of the American Immigration Lawyers Association (AILA), Southern California Chapter and served as a member of AILA's National Board of Governors (1988-97). He has chaired numerous AILA Committees, spoken at dozens of AILA Conferences and has contributed a number of scholarly articles to AILA's publications. Mr. Shusterman is a Certified Specialist in Immigration and Nationality Law, State Bar of California. He has served as a member of the Immigration and Nationality Law Advisory Commission for the State Bar. He has been named as one of Best Attorneys in America and as a SuperLawyer for many years. He is a frequent writer and lecturer on immigration law. Mr. Shusterman has testified as an expert witness before the Senate Subcommittee on Immigration in Washington, D.C. His website, www.shusterman.com, receives over 1,000,000 hits each week, and his free, e-mail newsletter has almost 60,000 subscribers in more than 150 countries.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.